5 - THIRD PARTY LIABILITY

Summary

Introduction

There is a great deal of potential third party liability created by activities in cyberspace. Partially this is due to the difficulty in holding persons responsible for their actions on the Internet, either because of international jurisdiction issues, or simply because of an inability to find them due to their anonymity or sheer numbers. As a result, third parties such as service providers and systems operators are often targeted instead. Employers, as well, are often targets of liability for actions of their employees.

Cases involving third party liability have been brought in a number of legal areas, including defamation, copyright infringement, trademark infringement, and unfair competition. Defamation and copyright, however, have been the primary source of third party liability claims in cyberspace.

Third Party Liability for Defamation

Liability of third parties for defamation traditionally depends on whether the court sees the third party as a “publisher,” “distributor,” or “common carrier.” A publisher is presumed to exercise control over the contents of what is published, and is therefore usually liable for those contents. A distributor is presumed not to have control over the contents of what is distributed and is therefore only potentially liable for those contents if the nature of the contents, and any alleged legal problems created by them, is brought to the distributor's attention and the distributor does nothing in response to notification.